**Appeals Court Rules to Allow Boys in Girls Sports
W. Virginia Appeals Court Makes Sick Decision
Sarah Parshall Perry / April 18, 2024
A federal appeals court rules in favor of a boy on a girls
track team, overturning a lower court's decision and striking down
West Virginia's law keeping scholastic sports separated by bio-
logical sex.
What does it take for a federal court to reach the outcome it
wants—instead of the outcome that the law demands? Apparently, just
some creative judicial gymnastics.
That’s what happened Tuesday with a panel of judges on the U.S.
Court of Appeals for the 4th Circuit when it overturned a lower
court decision and struck down West Virginia’s Save Women’s Sports
Act, a law that keeps scholastic sports in the state separated by
biological sex.
The appeals court’s rationale?
Biological girls and transgender “girls” (biological males)
are exactly the same.
In BPJ v. West Virginia Board of Education, Judge Toby Heytens,
a Biden appointee, was joined by Judge Pamela Harris, an Obama ap-
pointee, in determining that the state school board had violated
Title IX of the Education Amendments of 1972. That’s the federal
civil rights law that prohibits sex discrimination in all federally
funded education programs.
The appeals court also held that the West Virginia law likely
violated the 14th Amendment’s equal protection clause, which guaran-
tees all individuals equal treatment under the laws of the United
States.
Significant to the litigation history is the fact that BPJ—a
boy in middle school—beat female competitors in over 100 track
events more than 280 times while he was on puberty blockers, busting
the myth that boys on hormones have no athletic advantage over bio-
logical females.
The case also prompted an op-ed by a girl athlete at a West
Virginia middle school, who wrote that “if boys get to play on
girls’ teams, the team that I love so much would go away. We would
end up with two boys’ teams: one of boys who call themselves boys,
and one of boys who identify as girls but dominate and control the
girls’ team.”
Classifications based on sex require intermediate scrutiny
review under the Constitution’s equal protection clause. Specific-
ally, the law at issue must serve an important government interest
and be substantially related to achieving that purpose.
Writing for the court, Heytens emphastated that the effect of
West Virginia’s law was to “exclude transgender girls from the
definition of ‘female’ and thus to exclude them from participation
on girls sports teams.”
“That is a facial classification based on gender identity,”
the judge wrote. “And, under this court’s binding precedent, such
classifications trigger intermediate scrutiny.”
But Heytens simply ignored the fact that the Supreme Court
never has held transgender individuals to be a “suspect” or “quasi
-suspect” class for whom the Constitution demands heightened,
intermediate scrutiny review.
Nor has the Supreme Court ever held that transgender “girls”
are the same as biological girls. Nor has it ever held that sex is
the same as gender identity.
Not even in Bostock v. Clayton County did the Supreme Court
make such a determination. In fact, Justice Neil Gorsuch began his
opinion in that case by saying that “we proceed on the assumption
that ‘sex’ signified what the employers suggest, referring only to
biological distinctions between male and female.”
None of this mattered to the 4th Circuit, though.
Heytens wrote that West Virginia had failed to demonstrate
that its goals of “participant safety and competitive fairness”
were substantially related to their decision to exclude BPJ—again,
a biological boy on puberty-blocking hormones—from girls’
athletics.
This was especially so, he wrote, because BPJ “presented evi-
dence that transgender girls with her background and characteristics
possess no inherent, biologically-based competitive advantages over
cisgender girls when participating in sports.”
I think more than 100 middle school girls in West Virginia
would beg to differ.
As for BPJ’s secondary challenge to the Save Women’s Sports
Act, the appeals court found that the state law violated Title IX
by treating BPJ worse than similarly situated people, depriving
“her” of any meaningful athletic opportunities on the basis of
“sex.”
Heytens determined that the “stigma of being unable to parti-
cipate on a team with one’s friends and peers” (citing the court’s
own opinion in Grimm v. Gloucester County) was harm sufficient
enough to prove a violation of Title IX.
The court vacated the lower court’s decision in part, reversed
it in part, and remanded the case with instructions both to enter
summary judgment for BPJ on the Title IX claims and to develop an
additional factual record regarding BPJ’s argument that the school’s
actions violated the 14th Amendment’s equal protection clause.
In a scathing dissent, Judge G. Steven Agee (a George W. Bush
appointee) wrote that the majority “inappropriately expands the
scope of the Equal Protection Clause and upends the essence of
Title IX.”
Noting that BPJ “dominated” girls track meets, Agee stressed
that the majority erroneously concluded that biological boys are
similarly situated to biological girls, ignoring the fact that
biology is relevant in sports.
He wrote that it was irrelevant that BPJ identified as a girl
because “gender identity, simply put, has nothing to do with
sports.” BPJ was being treated the same as all the other biological
male athletes in West Virginia schools and so there had been no
discrimination.
In fact, PBJ’s participation in girls track did exactly what
West Virginia was trying to prevent: taking opportunities away from
biological girls.
In addressing the majority’s Title IX determination, Agee noted
that the court effectively had reversed the “monumental work Title
IX has done to promote girls’ sports from its inception.” He pointed
out that Title IX regulations expressly permit schools to separate
sports teams by biological sex.
What’s more, to reach its desired outcome, the majority had to
contort its reasoning to conclude that “sex” unambiguously meant
“gender identity.” It defies logic, Agee wrote, to say that when
Title IX was enacted in 1972, everyone implicitly understood that
sex also meant gender identity.
“If Congress so intended,” Agee wrote, “it should have expli-
citly said so. It did not.”
“Women and young girls deserve to compete on a level playing
field,” Rachel Rouleau, a senior counsel with Alliance Defending
Freedom who was one of the attorneys representing the West Virginia
Board of Education, said in response to the decision.
“The court’s decision undermines equal opportunities and con-
tradicts both biological reality and common sense,” Rouleau said.
“Title IX was designed to provide women with fair competition, and
West Virginia’s women’s sports law does the same.”
Alliance Defending Freedom is mulling an appeal to the Supreme
Court.
Here’s hoping that West Virginia—and the girls displaced by
BPJ—are vindicated eventually. And that a bad decision, relying on
a foundation of bad legal interpretation, doesn’t stand for long.*
Pray for God's protection.
Conservatively,
John
Conservativelyjohn.com 